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[2009] TASSC 75
appellant. The motion to review was allowed. The magistrate's order was varied by reducing the fine imposed on 4 December 2008 from $50,000 to $25,000. [37]
The Supreme Court accepted that Tasmania's newer fine-enforcement system made imprisonment less readily available, but said that it did not change the principle that a fine should be within an offender's reasonable capacity to pay. The applicant's asset position had not been disclosed, so he had not established that $50,000 was beyond his means. Even so, the amount was manifestly excessive when the whole sentencing picture was considered. The Court reduced it to $25,000.
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In Nandan v Tasmania [2009] TASSC 75, Blow J reviewed a magistrate’s global fine of $50,000 imposed on Thomas Satya Nandan for 150 offences. The central questions were whether the fine exceeded Nandan’s reasonable capacity to pay and whether it was manifestly excessive. The motion succeeded: the Supreme Court reduced the fine to $25,000. [1], [37]
1 cited instrument linked from this judgment.
Most of the offences concerned crowd-controller licensing. During 2007, Nandan operated a business called Mojo Security Services, employing crowd controllers and providing their services for a fee at the Men’s Gallery and the Granada Tavern. The business name was not registered. Over about six months, he employed unlicensed crowd controllers and did not maintain the registers required by s 35C of the Security and Investigations Agents Act 2002 (Tas). [2]
The offences included 72 counts of employing an unlicensed person under s 21A and 72 corresponding counts of charging a fee for providing an unlicensed person under s 23. The other charges included failures to maintain registers, carrying on business under an unregistered business name, a licensing charge, and further licensing-related offences concerning January 2008. [4] The judgment notes a wording error in one charge, but says no point was taken about it. [4]
Nandan was interviewed by Consumer Affairs officers in November 2007. His licence expired in January 2008 and was not renewed. He nevertheless provided crowd controllers for a major tennis tournament that month, including two who were unlicensed. [3] Blow J treated continued offending after Nandan had been caught as a significant aggravating circumstance. [20]
The magistrate was given information that Nandan was then out of work, had earned less than $1,000 from gardening work during 2008, and was supporting a wife and four children. His wife received Centrelink benefits. The family’s savings were close to exhausted, and the stated weekly expenses exceeded the wife’s reported benefit. However, no information was given about whether Nandan owned valuable assets. [14]-[15]
Blow J addressed two related but distinct questions: whether the fine was within reasonable capacity to pay, and whether it was manifestly excessive overall.
On capacity to pay, the Court reaffirmed a long-standing principle that, subject to statutory minimum or mandatory penalties, an offender should not be fined beyond reasonable capacity. The authorities identified for that principle include Young v Geddie, Broughton v Lowe, Kaye v Vagg and Fraser v R. [5] The Court rejected the idea that Tasmania’s later enforcement legislation had removed the principle. [12]
The Monetary Penalties Enforcement Act 2005 (Tas) emphasised enforcement by means other than imprisonment. But s 103 allowed the Director to seek a commitment order and warrant where civil or administrative enforcement could not realistically discharge the debt and other specified conditions were met. [9] Blow J held that imprisonment was a last resort, but remained possible even for someone who could not pay. [10]-[11] That feature meant that the underlying capacity-to-pay principle remained important. [12]
The financial information did not establish that the $50,000 fine was beyond Nandan’s reasonable capacity. The Court noted that he had worked for about 20 years and operated a small business, but had not disclosed whether he held valuable vehicles, other real estate, shares or overseas assets. [15] Blow J considered that the magistrate could treat the information as incomplete, particularly because Nandan had been alerted to the possibility of a large fine and had time to address his position. [15] The Court also referred to the relevance of future earning capacity, provided regard was had to local work prospects. [16] It was therefore not demonstrated that the fine exceeded reasonable capacity. [18]
That conclusion did not determine whether the amount was manifestly excessive. The Court considered the nature and scale of the conduct, including 150 offences and continued offending after detection. [19]-[20] The offending involved unlicensed crowd controllers, one of whom had a history of violent and public-order convictions. Blow J considered it reasonable to infer that this individual would not have obtained a crowd-controller licence. [19]
The Court also considered deterrence and the regulatory purpose of the legislation. Parliament had increased the maximum penalty for employing an unlicensed crowd controller to 200 penalty units, and Blow J regarded the statutory maximums as evidence that Parliament intended substantial penalties. [25], [28] The judgment explains that crowd controllers can use force and that unsuitable people in those roles can cause serious harm. [29] Those considerations supported a very heavy fine. [33]
But the sentencing picture also included significant matters in Nandan’s favour. He had lost his livelihood and had worked in security for about 20 years. His family depended on limited income, and he had no prior convictions relating to his security work. There had been no complaints about the unlicensed employees’ conduct, and Nandan had cooperated with investigators to a degree. [22] The financial figures also mattered: the fees charged for the four unlicensed employees in 2007 totalled $25,916, of which $19,131 was paid as wages and $6,785 remained as profit before overheads. [24]
Blow J’s conclusion was therefore not that a substantial fine was inappropriate. He said an extremely heavy fine was the only appropriate penalty, largely because of general deterrence, but found that $50,000 was manifestly excessive in light of the applicant’s lost livelihood and the available information about fees and wages. [33] The Court selected $25,000 after noting that it had no information about Nandan’s assets or the long-term effect of a back injury on his earning capacity. [35]-[36]
The judgment presents the reasonable-capacity principle as established before the 2005 Act. Blow J cites several earlier decisions in support, including Young v Geddie, Broughton v Lowe, Kaye v Vagg and Fraser v R. [5] The judgment does not suggest that the principle began with this case. Instead, it considers whether the newer enforcement regime changed it.
The “before” position described in the reasons includes authorities addressing the possible imprisonment of offenders who did not pay fines. Blow J quotes R v Lewis and Reardon v Nolan as part of that discussion, including the concern that a fine beyond an offender’s means may result in imprisonment for the original offence in substance. [6]-[7] He also refers to Kaye v Vagg for the proposition that default does not automatically result in actual imprisonment and that a court must exercise its discretion judicially. [10]
The “after” position under the 2005 Act was that imprisonment for unpaid penalties was more clearly a last resort, because civil or administrative enforcement had to be attempted and other statutory conditions applied. [9]-[11] But the legislation did not limit imprisonment to people who could pay but chose not to. Blow J said a person unable to pay could still be committed, and that, in some circumstances, people without means might face that possibility sooner because the debt could be difficult to discharge by other authorised means. [10]-[11]
The Court’s stated conclusion is narrow and direct: the 2005 Act should not cause courts to depart from the principle that it is improper to impose a fine beyond reasonable capacity to pay. [12] The judgment does not purport to set out a new general formula for calculating that capacity. Its application emphasises that current income is not the whole inquiry, particularly where assets and future earning capacity have not been disclosed. [15]-[18]
At [12], Blow J states: “the 2005 Act should not result in the courts departing from the principle that it is improper to impose a fine that is beyond the offender’s reasonable capacity to pay.” In plain English, the later enforcement system did not erase the need to consider whether the amount of a fine was reasonably payable.
At [15], the Court explains that the applicant’s lack of home ownership did not establish that he had no assets. It identifies possible assets that had not been addressed, including vehicles, other real estate, shares or overseas assets. The practical point in the reasons is that a court may have to assess capacity using the evidence provided, and may treat non-disclosure as leaving the financial picture incomplete.
At [18], Blow J says it had not been demonstrated that the magistrate imposed a fine beyond Nandan’s reasonable capacity. This is a finding about the evidence in this case, not a general statement that an offender must prove every possible detail of their finances in all circumstances.
At [24], the Court compares the $50,000 fine with the $6,785 profit before overheads from the relevant 2007 work. That figure was part of the overall sentencing assessment; it was not treated as a standalone measure of the applicant’s ability to pay.
At [33], Blow J says an extremely heavy fine was the only appropriate penalty, largely because of deterrence, but also concludes that $50,000 was manifestly excessive. The passage shows the balance the Court struck: serious regulatory offending could warrant a substantial penalty, while the particular amount could still be excessive in the circumstances.
At [37], the operative order is that the review motion was allowed and the fine reduced to $25,000. That is the formal disposition of the case.
The judgment is most directly relevant to sentencing questions involving fines where an offender argues that the amount exceeds reasonable capacity to pay. It is especially pertinent where the offender’s immediate income is low but the financial evidence does not address assets or possible future earning capacity. [14]-[18]
It is also relevant to questions about the relationship between fine enforcement and sentencing. The case considers a regime under which imprisonment for non-payment is a last resort, but remains possible in specified circumstances. The Court’s reasoning is that the possibility of imprisonment for inability to pay reinforces, rather than removes, the importance of not imposing a fine beyond reasonable capacity. [9]-[12]
The manifest-excessiveness analysis arose in a particular regulatory setting: 150 offences involving crowd-controller licensing and related requirements, repeated offending over time, offending after detection, substantial statutory maximums, public-safety concerns, and evidence about fees and wages. [19]-[29] The decision should not be read as setting a fixed fine for other regulatory offences. Blow J expressly noted the absence of comparable cases and a tariff for multiple offences of this kind. [34]
The judgment also highlights a potentially important evidentiary circumstance: the applicant had counsel, had been alerted to the prospect of a large fine, and still provided no information about assets. [13]-[15], [17] The Court’s treatment of that circumstance is specific to the material before it. It does not state that every omission about assets will have the same effect.
The supplied judgment records no later cases applying, distinguishing, limiting or overruling Nandan. It therefore does not support a conclusion about how later courts have treated the decision. The later-treatment position cannot be determined from this judgment alone.
Within Nandan, Blow J relies on earlier authorities for the established capacity-to-pay principle and for related sentencing propositions. The judgment cites Young v Geddie, Broughton v Lowe, Kaye v Vagg and Fraser v R on fines and ability to pay. [5] It refers to Plastic Fabrications Pty Ltd v The Crown in relation to the absence of an obligation on a sentencing magistrate to make persistent inquiries where an offender is represented by experienced counsel. [17] It also cites Paul v Director of Public Prosecutions and Graham v Harding regarding the use of relevant local knowledge. [32]
Those references show the authorities Blow J considered in reaching his decision, but they do not provide information about subsequent treatment of Nandan itself. Any account of later judicial treatment would need sources beyond the judgment supplied here.
The judgment does not determine how a court should quantify reasonable capacity to pay where an offender has disclosed income and expenses but assets remain uncertain. It identifies assets and future earning capacity as relevant considerations, but does not provide a calculation method. [15]-[18]
Nor does it set a general threshold for when a fine becomes manifestly excessive. The Court’s assessment depends on the combined circumstances: the number and nature of offences, repeat offending, statutory maximums, deterrence, the applicant’s lost livelihood, the financial figures and the available mitigation. [19]-[33] The Court also expressly says there was no tariff for multiple offences of this kind. [34]
The reasons do not resolve what effect Nandan’s back injury would have on his longer-term earning capacity. The Court had no information about his prognosis or the injury’s lasting impact. [35] His assets also remained unknown. [35] The Court nevertheless selected $25,000 after considering all relevant circumstances. [36]
Finally, the judgment does not provide a comprehensive account of how later changes to Tasmania’s fine-enforcement legislation might affect the analysis. Its conclusion is grounded in the version of the Monetary Penalties Enforcement Act 2005 discussed in the reasons, particularly s 103. [9]-[12]
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CITATION: Nandan v Tasmania [2009] TASSC 75
Criminal Law - Sentence - Sentencing orders - Fines - Amount - Ability to pay - Asset position not disclosed - Possibility of imprisonment if default.
Young v Geddie (1978) 45 FLR 400; Broughton v Lowe [1979] Tas R 309 (NC 7), 20/1979; Kaye v Vagg (No 2) (1984) 11 A Crim R 127; Fraser v R (1985) 20 A Crim R 4, referred to.
Judgment Number: [2009] TASSC 75
1 This is a motion for the review of an order by which a magistrate fined the applicant $50,000. The applicant contends that the fine was manifestly excessive. Amongst other things, he contends that it was manifestly excessive because it was beyond his reasonable capacity to pay.
2 The fine was a global penalty imposed in respect of 150 offences, all but one of which were for contraventions of the Security and Investigations Agents Act 2002 ("the Act"). Amongst other things, that Act makes provision for the licensing and regulation of crowd controllers, and of those who employ crowd controllers and make their services available to others. During 2007 the applicant carried on a business under the name Mojo Security Services, employing crowd controllers, and making their services available for a fee. That business name was not registered. Over a period of about six months, from 29 March 2007 to 15 September 2007, there were many occasions when the applicant employed unlicensed crowd controllers to work at establishments called the Men's Gallery and the Granada Tavern. He charged a fee for providing their services. The Act, s35C, required him to maintain a register containing information as to the crowd controllers on duty, and any incidents involving physical contact with other persons, but he did not maintain such a register at either of the two establishments.
3 The applicant's offending was investigated by Consumer Affairs officers in October 2007. The applicant took part in an interview by those officers on 6 November 2007. He held a crowd control agent's licence which expired in January 2008. He applied to renew it but, because there was a possibility of him being charged with offences under the Act, no renewal was forthcoming. He had a contract to provide crowd control for a major tennis tournament that month. He decided to honour his contract. Although unlicensed, he provided crowd controllers for that event. Two of them were unlicensed. He received a fee for providing their services.
4 The 150 charges to which the applicant pleaded guilty comprised the following:
• 72 charges of employing an unlicensed person as a crowd controller, contrary to the Act, s21A. Each charge related to a particular man at a particular establishment during the period from 29 March 2007 to 15 September 2007. The charges related to four employees.
•
72 charges of charging a fee for undertaking crowd control activities and providing a person to undertake such activities when that person was not the holder of an appropriate licence, contrary to the Act, s23. Those 72 charges related to the same crowd controllers, establishments and dates as the 72 charges under s21A.
•
Two charges of failing to maintain a register as required by s35C.
•
A charge of carrying on business under an unregistered business name, contrary to the Business Names Act 1962, s5(1)(b).
•
A single charge of undertaking commercial sub-agent activities without an appropriate licence, contrary to the Act, s4A. (That section also prohibits the undertaking of crowd control activities without an appropriate licence. There was a mistake in the wording of the charge. The applicant did not undertake commercial sub-agent activities, but no point was taken as to that.)
•
A further charge under s21A, relating to the employment of two unlicensed persons between 3 January 2008 and 12 January 2008.
•
A corresponding further charge under s23, relating to the charging of a fee for the provision of the services of those two unlicensed crowd controllers during that period.
Fines beyond the offender's reasonable capacity to pay
5 There is a long line of authority to the effect that, subject to any statutory requirements as to minimum or mandatory fines, an offender must not be fined an amount that is beyond his or her reasonable capacity to pay: Young v Geddie (1978) 45 FLR 400; Broughton v Lowe [1979] Tas R 309 (NC 7), 20/1979; Kaye v Vagg (No 2) (1984) 11 A Crim R 127; Fraser v R (1985) 20 A Crim R 4.
6 Many of the relevant authorities contain comments as to the significance of statutory provisions for the imprisonment of offenders who default in the payment of their fines. In R v Lewis, English Court of Criminal Appeal, 30 November 1964, quoted in Thomas, Principles of Sentencing, 1st ed, at 221, Ashworth, Brabin and Lyell JJ said:
"It is in the view of this Court wrong in principle to impose such a fine as may be utterly beyond the accused's means and will only result in the prison sentence which is mentioned at the time of the trial as the sanction for failure to pay."
7 In Reardon v Nolan [1983] FCA 260; (1983) 74 FLR 309 at 313, Fisher J, a judge of the Federal Court, considered a situation where imprisonment was not available as a punishment for a primary offence, but was available when a fine was not paid. At 313 his Honour said:
"... until some ability to pay even a small instalment towards the fines is established, any prison term can only be regarded as punishment for the primary offence."
8 There was a discussion between the learned magistrate and the applicant's counsel as to Broughton v Lowe and the principle that a fine should not be beyond the offender's reasonable capacity to pay. The learned magistrate commented that the legislation had changed a lot. The applicant's counsel submitted that it had, but that the principles remained the same. The learned magistrate responded, "Except that you can no longer go to prison in default unless you won't pay, as distinct from can't."
9 The learned magistrate was no doubt referring to the regime for the enforcement of fines that now applies under the Monetary Penalties Enforcement Act 2005. The emphasis of that Act is certainly on the enforcement of fines and monetary penalties by means other than imprisonment and the threat of imprisonment. However the Director of the Monetary Penalties Enforcement Service can obtain orders or warrants under the Sentencing Act 1997 for the commitment to prison of those who do not pay their fines or other penalties. Section 103 of the 2005 Act reads as follows:
"The Director may apply to a court for a commitment order and a warrant of commitment against an enforcement debtor if -
(a) the Director, after attempting to enforce a debt by civil enforcement or administrative enforcement, is satisfied that the unpaid amount of the monetary penalty or penalties cannot realistically be discharged in any other way authorised under this Act; and
(b) the enforcement debtor is precluded by another section of this Act from being assessed for an MPCSO, or has been assessed as unsuitable for performing an MPCSO."
"MPCSO" means a monetary penalty community service order issued under s33 of that Act.
10 It is clear from the wording of s103 that the imprisonment of a person who fails to pay a fine or some other monetary penalty is now very much a last resort. However it is also clear that, contrary to what the learned magistrate said, imprisonment may be ordered for a person who cannot pay, and not just for a person who can pay but chooses not to. Of course the discretion to imprison an "enforcement debtor" is one that must be exercised judicially. But nothing has changed in that respect. In Kaye v Vagg (supra) at 129, Cox J (as he then was) said:
"I think it ought to be remembered that it does not automatically follow that a failure to pay the fine and costs leads to actual imprisonment. Powerful motivation though the statutory scheme providing for imprisonment for non payment may be for the offender to effect payment and though that scheme is draconian in appearance, the fact remains that the court is required under s78(5) of the Justices Act 1959 to judicially determine which of a number of specified courses it should adopt in respect of a defaulter."
11 It is clear that the imprisonment of people who do not pay their fines should be ordered less readily under the 2005 Act than it was previously. However those who do not have the means to pay a fine can still be sent to prison. In fact, because of the wording of s103(a), individuals without means might face the possibility of imprisonment sooner than others, as a result of it being easy for the Director to be satisfied as to them that the unpaid amount "cannot realistically be discharged in any other way authorised under this Act".
12 I think it must follow that the 2005 Act should not result in the courts departing from the principle that it is improper to impose a fine that is beyond the offender's reasonable capacity to pay.
13 On 22 August 2008 the applicant pleaded guilty to the 147 charges relating to the offences committed in 2007. After the facts had been stated and submissions had been made in mitigation, the learned magistrate said that his preliminary view was that a fine of $50,000 was the appropriate penalty. He adjourned the case for five days to enable submissions as to that proposition to be prepared. On 27 August 2008 the applicant's counsel provided the learned magistrate with further information as to his financial circumstances. After some further adjournments, the applicant pleaded guilty to the three charges relating to January 2008, and the fine was imposed on 4 December 2008.
14 By that time, the learned magistrate had been provided with the following information as to the applicant's financial circumstances:
•
The applicant, who was 41, had done security work for all his working life, but was now unlicensed and out of work.
•
He had done some gardening work during 2008, but had earned less than $1,000 from that work.
•
He was living with his wife and four of his five children.
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His wife was receiving Centrelink benefits of about $400 per fortnight.
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He was renting their home from his sister for $150 per week. Other weekly expenditure comprised $100 for groceries, $40 for electricity, $100 for telephone expenses, and $80 for petrol, making a total of $470.
•
The applicant and his family had been living off "a relatively small amount of savings", but those savings were close to exhausted as at 22 August 2008.
•
The applicant did not have to make any loan payments.
15 No information was provided to the learned magistrate as to whether or not the applicant had any assets of any significant value. He did not own any equity in his home, but it certainly does not follow that he was without assets. He had been working for some 20 years, and had been running a small business. He could very well have owned one or more valuable motor vehicles, real estate other than his home, shares, or even overseas assets. It follows that the learned magistrate was entitled to proceed on the basis that, having been alerted to the possibility of an enormous fine and given some days to consider his position, he chose to provide an incomplete picture of his means, and not to reveal anything about his asset position except that he lived in a rented house.
16 In Fraser v R (supra), at 12, Davies, Kelly and Beaumont JJ quoted with approval the following passage from Hines, Judicial Discretion in Sentencing of Judges and Magistrates (1982), par9.24:
"... 'the court should not be misled into thinking that present incapacity to pay is conclusive. There may be many cases where a man at the moment may only be able to reveal overdrafts and debts, whereas somewhere at his beck and call are to be found resources with which he can meet the penalty'; moreover, future earning capacity is obviously relevant, provided that regard is had to current local work prospects."
17 When a defendant is represented by experienced counsel, there is no obligation on a sentencing magistrate to make persistent enquiries as to the ability of the defendant to pay a large fine. See Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95 at par20.
18 It was clear that the applicant did not have enough money to pay the fine promptly, but it was certainly possible that, given time, he could sell assets of sufficient value for him to be able to pay the fine. It has not been demonstrated that the learned magistrate imposed a fine which was beyond the applicant's reasonable capacity to pay.
19 There were a number of factors that weighed in favour of the learned magistrate imposing a very large fine. The applicant committed 150 offences. He completely disregarded the Act for about six months in 2007. Searches by the prosecutor revealed that none of the applicant's unlicensed employees had held relevant licences, at least since January 2003. One of them, whom the applicant had employed on 43 occasions, had four prior convictions for assault, as well as convictions for destroying property, resisting police, and disturbing the peace by fighting. One assault conviction was under the Criminal Code, and had resulted in a suspended sentence of four months' imprisonment. I think I can reasonably infer that any application by that man for a crowd controller's licence would not have been successful.
20 It is also significant that the applicant re-offended in January 2008 after he had been caught, and knew he had been caught. The learned magistrate was thinking of imposing a fine of $50,000 before the applicant pleaded guilty to the charges relating to January 2008. It is clear from his sentencing comments that he decided not to increase the penalty to reflect the additional offences. He said nothing about re-offending, after having been interviewed by the authorities, constituting a significant aggravating factor. However it was a significant aggravating factor that the applicant continued to offend, and that needs to be taken into account in considering whether the fine in question was manifestly excessive.
21 The applicant had some prior convictions, none of which related to his security work. He was sentenced to seven days' imprisonment for assault in 1991, when he was 23 years old. Since then his convictions mostly related to speeding and other driving offences. He was fined for failing to disclose the identity of the driver of a motor vehicle on three occasions between October 2004 and November 2006. That gives some indication of his attitude towards the law.
22 The learned magistrate was obliged to take into account the following mitigating factors:
•
The applicant had a dependent wife and four dependent children.
•
He had been unable to renew not only his crowd control agent's licence, but also his security guard's licence. He had therefore lost his business and was unable to earn an income doing security work. He had been doing that sort of work for some 20 years. It was the only work he knew. As a result, he had been able to earn very little, and his wife was receiving Centrelink benefits.
•
He had no prior convictions relating to his 20 years' security work.
•
Whenever he employed one or more unlicensed crowd controllers, there was always a licensed employee present.
•
No complaint had been made as to the conduct of any of the unlicensed employees.
•
All of the unlicensed employees were proposing to get licences if they could.
•
The applicant co-operated with Consumer Affairs officers, to a degree, when interviewed.
23 This was not a case in which remorse was relevant as a mitigating factor. The applicant had not only re-offended in January 2008, but had apparently attempted to mislead the court. Initially his counsel told the learned magistrate that all of the unlicensed employees had held appropriate licences, and had ceased to hold them only because of bureaucratic delays relating to renewals. Those instructions were changed when the prosecutor revealed that none of the employees in question had been licensed since at least January 2003. The apparent attempt to mislead the court was not relevant except as an indication of a lack of remorse. Remorse is a mitigating factor, but a lack of remorse is not an aggravating factor: R v Hryczszyn [1976] Tas SR 10; Harris v R [1967] SASR 316; R v Schioparlan (1991) 54 A Crim R 294; Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186; Ferguson v R [2001] TASSC 20 at par16. This was a case in which there was absolutely no indication of remorse.
24 The total of the amounts charged by the applicant for the services of the four unlicensed employees in 2007 was $25,916. Of that amount, $19,131 was paid to the employees as wages, and the balance of $6,785 represented a profit to the applicant, before overheads. In comparison, a fine of $50,000 might be seen as draconian. However it is significant that Parliament intended very heavy fines to be imposed for these sorts of offences.
25 The maximum fines prescribed by the relevant sections were as follows:
•
For employing an unlicensed crowd controller contrary to s21A, 200 penalty units, ie, $24,000.
•
For charging a fee for providing an unlicensed person for crowd control activities contrary to s23, 20 penalty units, ie, $2,400.
•
For failing to maintain a register contrary to s35C, 100 penalty units, ie, $12,000.
•
For undertaking crowd control activities without a licence, contrary to s4A, 100 penalty units, ie, $12,000.
•
For carrying on business under an unregistered business name, contrary to the Business Names Act, s5(1), 10 penalty units, ie, $1,200.
26 None of the offences committed by the applicant were punishable by imprisonment. It was therefore not open to the learned magistrate to make a community service order: Sentencing Act 1997, s7(c). The only prescribed penalty for each of the offences was a fine.
27 The first legislation in this State relating to crowd controllers was the Crowd Controllers Act 1999. Under s5(1) of that Act, it was an offence for a person to carry out the functions of a crowd controller without obtaining "the prescribed competency requirements". There was a maximum fine of 20 penalty units. Under s5(2), it was an offence to engage another person to carry out the functions of a crowd controller if that person had not obtained the prescribed competency requirements. Once again, the maximum fine was 20 penalty units.
28 With effect from 1 January 2006, that legislation was repealed and amendments were made to include provisions relating to crowd controllers in the Act: Security and Investigations Amendment (Crowd Controllers) Act 2005. It was at that stage that the penalty of 200 penalty units for employing an unlicensed crowd controller contrary to s21A was introduced. If that offence is committed by a corporation, the maximum penalty is 1,000 penalty units.
29 Obviously the legislature prescribed heavy penalties for the purpose of deterring security business proprietors from employing unsuitable individuals as crowd controllers. Crowd controllers use force, and therefore can do a lot of harm. They can hurt people. In rare cases, they might cause fatal injuries. If they mismanage tense situations, violence can break out, perhaps on a large scale. A talented crowd controller can prevent situations from getting out of hand. The size of the maximum penalties suggests that the legislature must have had in mind the harm that can result when an unsuitable person works as a crowd controller and resorts to violence.
30 When the learned magistrate first revealed that he had in mind a fine of $50,000, he said the following:
"But at the risk of giving my sentencing remarks now, it's notorious that there is an enormous amount of public and police concern at the behaviour of so called 'crowd controllers' and many take the view that the licensing process and the training process as does exist is hopelessly inadequate anyway, and if that system itself is not honoured, then one might ask what hope is there of achieving reasonable standards in the industry?"
31 In his sentencing comments, the learned magistrate said the following:
"... it is instructive to see how seriously such offences were and are regarded by members of our Parliament, and for good reason, we are all familiar with cases where inappropriate crowd controller conduct has led to injustice, injury and even death. Strict compliance with requirements for licensing is therefore necessary for public safety and with laws designed to make transparent the arrangements between employees like yourself and hotels is likewise necessary in the public interest."
32 Counsel for the applicant made a submission to me to the effect that it was not open to the learned magistrate to take judicial notice of public and police concern as to the behaviour of crowd controllers, inadequacies in the licensing and training process, or cases where crowd controllers had caused injustice, injury or death. However magistrates are entitled to take into account their local knowledge as to relevant matters: Paul v Director of Public Prosecutions (1990) 90 Cr App R 173 at 176 - 177; Graham v Harding (1977) 17 ALR 630 at 632. Thus, for example, in Paul, Woolf LJ (as he then was) held that local justices were entitled to take into account their knowledge that a certain area was often frequented by prostitutes, that there was a constant procession of cars driving around the area at night, and that it was a heavily populated residential area. I assume that the learned magistrate had personal local knowledge of the licensing, training and behaviour of crowd controllers. If so, I think he was entitled to take his knowledge into account. If I am wrong about that, and he impermissibly took into account matters of personal knowledge, I do not see any such error as significant. The reasons for the heavy penalties prescribed for the offences in question are self-evident.
33 In my view this was a case in which an extremely heavy fine was the only appropriate penalty, largely because of the need to deter others from committing similar offences. However, bearing in mind the fact that the applicant has lost his livelihood, and bearing in mind the available information as to fees charged and wages paid by him, I am satisfied that the fine of $50,000 was manifestly excessive.
34 I do not think it is appropriate for me to remit this matter to the Magistrates Court for resentencing. There have been few, if any, comparable cases. There is no tariff for multiple offences like these. The more appropriate course is for me to impose a lower fine.
35 The applicant's counsel told me that his client is still out of work. Early in August 2009 he fell from a balcony, injured his back, and was admitted to hospital. I have no information as to his prognosis, nor as to the likely long-term impact of the back injury on his earning capacity. I of course have no information as to his assets.
36 Having regard to all relevant circumstances, I think a fine of $25,000 would be appropriate.
37 I therefore order that the motion to review be allowed, and that the order of the learned magistrate be varied by reducing the fine imposed on 4 December 2008 to $25,000.
Nandan
Tasmania [2009] TASSC 75
(1978) 45 FLR 400
(1983) 74 FLR 309
(1995) 5 Tas R 186
(1977) 17 ALR 630
The motion to review was allowed. The magistrate's order was varied by reducing the fine imposed on 4 December 2008 from $50,000 to $25,000. [37]